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Anti-War & Anti-Gitmo: Military Expression and the Dilemma Of Case Western Reserve Journal of International Law Volume 43 | Issue 3 2011 Anti-War & Anti-Gitmo: Military Expression and the Dilemma of Licensed Professionals in Uniform Michael J. Lebowitz Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Recommended Citation Michael J. Lebowitz, Anti-War & Anti-Gitmo: Military Expression and the Dilemma of Licensed Professionals in Uniform, 43 Case W. Res. J. Int'l L. 579 (2011) Available at: https://scholarlycommons.law.case.edu/jil/vol43/iss3/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. File: Lebowitz 2 Created on: 4/17/2011 2:04:00 PM Last Printed: 5/22/2011 7:45:00 PM ANTI-WAR & ANTI-GITMO: MILITARY EXPRESSION AND THE DILEMMA OF LICENSED PROFESSIONALS IN UNIFORM Michael J. Lebowitz* Military justice is unique not only for its separate legal code, but also for its impact on licensed professionals in uniform. Physicians and lawyers are ethically bound by their licensing requirements. But put a mili- tary uniform on these professionals, and they are subject to punitive action under the respective codes of their nation‟s armed forces. For a uniformed professional facing a desire to speak out against war or military policy, regulations governing “military expression” can be a “career killer.” This article examines the unique dilemma facing licensed professionals who are caught up in a trifecta of free-speech restrictions, personal beliefs and ethi- cal licensing requirements. Cases originating in the United States, United Kingdom, and Guantánamo Bay highlight the legal and career ramifica- tions affecting those who could not legally balance the military expression trifecta. This article further considers potential remedies to assist uniformed licensed professionals who experience this “crisis of conscience.” I. INTRODUCTION ........................................................................................ 579 II. UNDERSTANDING THE MILITARY EXPRESSION TRIFECTA .................... 581 A. Military Expression Limitations .................................................... 583 B. Personal Beliefs ............................................................................ 583 C. Professional Ethical Requirements ................................................ 587 III. MILITARY EXPRESSION AT GUÁNTANAMO BAY .................................. 591 A. GTMO-Specific Factors ................................................................. 592 B. Trifecta Violations .......................................................................... 593 C. Going Beyond Military Expression ................................................ 596 IV. REMEDIES ............................................................................................. 598 V. CONCLUSION ......................................................................................... 602 I. INTRODUCTION Much has been made of medical professionals and lawyers who as- sisted in controversial post-9/11 practices such as harsh interrogations and combat operations.1 As such, this paper instead focuses on those licensed * J.D., Case Western Reserve University School of Law; B.A., Kent State University. Currently serving as a war crimes prosecutor in the Office of Military Commissions. Also 579 File: Lebowitz 2 Created on: 4/17/2011 2:04:00 PM Last Printed: 5/22/2011 7:45:00 PM 580 CASE W. RES. J. INT‘L L. [Vol. 43 uniformed professionals who personally oppose the actions of their military employers. Some would call these doctors and lawyers ―anti-war.‖2 And, it is these professionals who—perhaps more than anyone else in uniform—are caught between a trifecta of licensed ethical requirements, rules limiting servicemember military expression, and their own consciences.3 This paper analyzes the military expression rules surrounding licensed professionals in uniform, and the resulting dilemma such requirements create relating to those who wish to act on their personal beliefs. In addition, the military commissions process at Guántanamo Bay, Cuba (GTMO) is noteworthy in this context because it serves as a sort of laboratory for legal professionals as they navigate the military expression rules.4 In a number of instances, military prosecutors, defense attorneys, and serving as litigation attorney and military defense counsel in private practice, handling nu- merous military expression cases. Previously served as chief legal assistance attorney and military defense counsel in the Virginia Army National Guard as part of the U.S. Army Judge Advocate General‘s Corps. Deployed to Iraq in 2005–2006 as a paratrooper with the Pathfinder Company of the 101st Airborne Division. The author would like to thank Chuck Zelnis (USMC Ret.), prosecutor, Office of Military Commissions, for his guidance and in- sight in preparing this article. 1 See, e.g., Michael L. Kramer & Michael N. Schmitt, Lawyers on Horseback? Thoughts on Judge Advocates and Civil-Military Relations, 55 UCLA L. REV. 1407, 1418 & n.58 (2008)(citing Memoranda From Air Force Deputy Judge Advocate General Major General Jack L. Rives, Navy Judge Advocate General Rear Admiral Michael F. Lohr, Army Judge Advocate General Major General Thomas J. Romig, and Staff Judge Advocate to the Com- mandant of the Marine Corps Brigadier General Kevin M. Sandkuhler to the General Coun- sel of the Air Force Mary Walker Regarding Recommendations of the Working Group to Assess the Legal, Policy, and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Feb. to Mar. 2003) in THE TORTURE DEBATE IN AMERICA 377–91 (Karen J. Greenberg ed., 2005)). 2 See Anti-War Definition, Cambridge Advanced Learner‘s Dictionary, http://dictionary. cambridge.org/dictionary/british/anti-war (last visited Mar. 13, 2011) (defining ―anti-war‖ as ―opposed to a particular war or to all wars‖). 3 See generally CODE OF MEDICAL ETHICS (Am. Med. Ass‘n 2010); MODEL RULES OF PROFESSIONAL CONDUCT (Am. Bar Ass‘n 2010), available at http://www.americanbar.org/ groups/professional_responsibility/publications/model_rules_of_professional_conduct/model _rules_of_professional_conduct_table_of_contents.html. The U.S. military‘s Uniform Code of Military Justice also provides a numbers of punitive charges limiting military expression. See 10 U.S.C. § 888 (2006) (contempt toward officials); 10 U.S.C. § 892 (2006) (failure to obey lawful orders or regulations); 10 U.S.C. § 934 (2006)(conduct that endangers military discipline or could bring the military into disrepute); see also Ellen Yaroshefsky, Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers be Permitted to Violate the Law, 36 HOFSTRA L. REV. 563, 574–79 (2007) (describing the ―crisis of con- science‖ that compelled a military lawyer opposed to various practices at Guántanamo Bay Naval Station to smuggle classified information to a human rights organization). 4 See generally Joseph Landau, Muscular Procedure: Conditional Deference in the Ex- ecutive Detention Cases, 84 WASH. L. REV. 661, n.155 (2009) (detailing numerous examples of military attorneys at GTMO who began expressing opposition to executive branch poli- cies); see also Yaroshefsky, supra note 3. File: Lebowitz 2 Created on: 4/17/2011 2:04:00 PM Last Printed: 5/22/2011 7:45:00 PM 2011] LICENSED PROFESSIONALS 581 supposedly neutral Judge Advocates have engaged in a messy literal war of words.5 This scripted ―war‖ relates specifically to attacks and counter- attacks emanating from personal beliefs that are typically frowned upon under military regulations.6 Among the carnage relating to action derived from personal belief, one experienced military attorney was sent to prison at Fort Leavenworth, Kansas, others resigned in protest, careers were stunted or ended, and others were threatened with sanctions.7 An odd result then seemingly developed where military prosecutors found themselves con- strained in their speech well beyond typical rules outside of GTMO, while military defense lawyers continued to get away with speech activity that runs counter to military regulation and practice.8 Part II of this paper analyzes the three elements that make up the unique dilemma and additional pressures facing those licensed professionals in uniform who experience a ―crisis of conscience.‖ Part III focuses on the veritable military expression laboratory that has developed among some uniformed attorneys participating in the detainee and military commissions process at Guántanamo Bay, Cuba. Part IV offers some remedies that can be used to assist both the licensed professionals who find themselves personal- ly conflicted and potential whistleblowers. II. UNDERSTANDING THE MILITARY EXPRESSION TRIFECTA Forms of military expression limitations are applicable to most Western armed forces.9 This is not to say that these servicemembers do not have free speech rights, as they certainly do.10 American soldiers, sailors, marines, and airmen undoubtedly retain First Amendment rights, for exam- ple, as do U.K. troops under Article 10 of the European Convention of Hu- 5 See Landau, supra note 4. 6 Id. 7 Id. 8 See, e.g., DEP‘T OF DEFENSE, REGULATION FOR TRIAL BY MILITARY COMMISSION (2007). 9 See generally U.S. v. Wilcox, 66 M.J. 442 (2008) (prosecuting a soldier under
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